ONTARIO COURT OF JUSTICE
Durham Region
BETWEEN:
DURHAM REGION
— AND —
LYNDON LEWIN
Before Justice of the Peace J. Kulmatycki
Heard on February 21, 2025
Reasons for Judgment released on April 22, 2025
Mr. M. Pelham agent for the prosecution
Mr. R. Stewart agent for the defendant Lyndon Lewin
Kulmatycki J.P.:
Introduction
1Lyndon Lewin is charged with eight offences under the Health Protection and Promotion Act of Ontario, R.S.O., 1990, CH 7 (so amended), section 100(1) alleging behaviour in contravention of orders by a Public Health Inspector under the Act between March 19, 2024, and April 5, 2024.
2Section 13 of the Health Protection and Promotion Act requires that a medical officer of health or a public health inspector may, in circumstances described in subsection (2) of s. 13, by written order, require a person to take or to refrain from taking any action that is specified in the order in respect to a health hazard.1
3Those conditions under subsection (2) include an existing health hazard in the health unit served and a requirement specified in the order are necessary in order to decrease the effect of, or to eliminate, the health hazard. 2
4Section 100(1) of the Health Protection and Promotion Act makes it an offence to disobey an order under the Act. 3
Legal Principles – Reasonable Doubt
5The defendant is presumed innocent. There is no obligation on the defendant to do anything to establish his innocence. The presumption of innocence remains in place, unless and until the Crown has proven each essential element of the offences beyond a reasonable doubt.
6Reasonable doubt is based on reason and common sense. It is logically connected to the evidence or lack of evidence. It is not enough for me to believe that the defendant is probably or likely guilty. Reasonable doubt requires more than mere probability. Although it cannot be described with mathematical precision, reasonable doubt is a high standard, consistent with its role as a safeguard against wrongful convictions. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty.
7In assessing the evidence of the witnesses in this case, I must consider their credibility and reliability. Credibility relates to the honesty of the witness, including whether the witness was trying to tell the truth and if the witness was candid, sincere, biased, evasive, or prone to exaggeration or minimization. Reliability relates to the accuracy of a witness’ testimony and involves a consideration of the person’s ability to accurately observe, recall and describe the events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. However, credibility alone does not establish reliability, as a truthful witness may give unreliable evidence.
8Testimony can be assessed through a non-exhaustive list of factors, including the plausibility of the evidence; the presence of independent supporting or contradicting evidence; the internal and external consistency of the evidence; the witness’ apparent willingness to be fair and forthright without any personal motive or agenda; and to a limited extent, the witness’ demeanour while testifying.
9When considering the credibility and reliability of a witness, I may accept some, none, or all, of a witness’ evidence. Credibility relates to whether a witness is speaking the truth. Reliability relates to the actual accuracy of the testimony. The credibility and reliability of a witness must be “tested in the light of all the other evidence presented.4
10In this case, although the defence has not specifically argued the point, the Court believes that he has launched a due diligence defence. Mr. Lewin does not deny that he disobeyed the Order as a result of his interaction with authorities on March 10, 2024, and as such it would be an error in law to apply a W.D. analysis. If I’m wrong in making this evaluation, it will be clearly demonstrated that I have applied the test in W.D. when assessing the testimony of the various witnesses.
11The legal test in this case is to assess whether Mr. Lewin can prove to the Court that he took all reasonable steps in accordance with a due diligence defence.
12R. v. Sault Ste. Marie, SCC 1978 CanLII 11 (SCC), [1978] 2 SCR 1299 states at various points that Mr. Lewin can mount this defence. I rely on two specific areas of the decision:
(a) In sentencing, evidence of due diligence is admissible and therefore the evidence might just as well be heard when considering guilt. Additionally, it may be noted that s. 198 of The Highway Traffic Act of Alberta, R.S.A. 1970, c. 169, provides that upon a person being charged with an offence under this Act, if the judge trying the case is of the opinion that the offence (a) was committed wholly by accident or misadventure and without negligence, and (b) could not by the exercise of reasonable care or precaution have been avoided, the judge may dismiss the case.
(b) In the working paper (The Meaning of Guilt—Strict Liability), the Commission further stated (p. 33), “let us recognize the regulatory offence for what it is—an offence of negligence—and frame the law to ensure that guilt depends upon lack of reasonable care.” The view is expressed that in regulatory law, to make the defendant disprove negligence—prove due diligence—would be both justifiable and desirable.
Position of the Parties
13The Prosecution submits that the credibility of the witnesses from the Durham Region Health Division were reliable and credible, and should be accepted, and that the single witness for the defence, that being Mr. Lewin was neither reliable nor credible and should be rejected. Mr. Pelham also submits that the defendant has admitted to non-compliance with the Order of the authorities and therefor is mounting a due diligence defence without announcing it formally. He relies on cases and authorities that are contained in his written submissions. Additionally, he provided guidance in terms of the proper method in which Mr. Lewin should have followed regarding an appeal of the Order.5
14Agent for Mr. Lewin submits that the witness’s for the Prosecution have failed to link the actions of the defendant to the charges, albeit he is the sole proprietor of the business known as “1 Spicy Mama”. The defendant submits that he was only assisting his niece in starting her business but was never the actual owner of the business. The agent further submits that the authorities never interacted with the defendant on March 10, 2024, and therefore he is not liable to the charges as laid. The defendant additionally submits, that because the public health officials interacted with his niece at the farmer’s market in his presence, he took action to dissolve the business and instruct his niece to follow the “Order” of the officials or to cease the business all together. This, he says, absolves him of any wrongdoing.
15Mr. Stewart relies on JG v. Middlesex-London, 2003 CanLII 71504 (ON HSARB) without stating a particular paragraph for my review. In oral submissions, he states that the Tribunal matter in Middlesex/London speaks to an appeal to the Tribunal where charges were laid in relation to a bat infestation. The grounds for that appeal were that he could not reasonably comply with the Order for two reasons, being, there was no infestation and second, he could not find a qualified infestation removal company.
16A quote from the case presented states the following:
(a) A medical officer of health or a public health inspector may make an order under section 13 of the HPPA only where he or she is of the opinion, on reasonable and probable grounds, that a health hazard exists, and that the requirements specified in the order are necessary in order to decrease the effect of or to eliminate the health hazard. On the evidence before us, we are not satisfied that there is an infestation of bats, and therefore cannot conclude that a health hazard exists. Accordingly, we are of the view that the order cannot stand.
17I highlight the words reasonable and probable grounds. In the case before me, the Prosecution alleges that those grounds exist whereas in the Tribunal matter, the board found that grounds did not exist in terms of the animal infestation and therefore concluded that there was no health risk.
Summary of Evidence
18The allegations begin on March 10, 2024, where Durham Region Health Department Public Health Inspectors attended the Uxbridge Arena located at 291 Brock Street, to inspect food venders that were attending an indoor winter farmer’s market event. They encountered a booth which had not registered for the event with signage indicating it was being operated by the business “1 Spicy Mama.”
19Health Inspectors stated that they had concerns that the food products being offered for sale were not being stored at proper temperature, and that there was no documentation regarding where and how food preparation was properly conducted. Documentation certifying the shelf life of the food they were offering for sale was not provided upon demand. The evidence also suggests that after speaking to the individuals who were tending the booth, including the defendant, who was later identified as Mr. Lyndon Lewin, they ordered the booth to cease operation. Of note, Mr. Lewin “side stepped” away from the actual booth and was illusive in engaging with the officials. He did produce a licence on his phone to the officers that was in a different name.
20Over the course of several weeks, the investigators learned of businesses that were selling the bottled items, including on-line advertisements for 1 Spicy Mama food products.
Public Health Inspector Cheung
21Public Health Inspector Cheung stated that on March 10, 2024, she observed a banner draped over the front of the table with the name of 1 Spicy Mama where multiple food items were displayed as for sale. All the items were labeled with a 1 Spicy Mama logo. They included:
(a) Bottled hot sauces.
(b) Canned condiments.
(c) Prepackaged seasoning.
(d) Fresh pressed juices.
22In addition to the bottled items, she observed prepared foods, namely, curry goat, jerk chicken and a rice and pea dish.
23Inspector Cheung advised that Ms. Andrea Lewin (verbal identification) and the male originally believed to be Jeffrey Powell (later identified to be the defendant before this Court), became angry and aggressive when the Inspector was asking questions about the processes to make the sauces. She observed that the prepared foods on the table were being stored at room temperature. She further testified that none of her questions were being answered immediately and that the two adults were being “combative”.
24The Inspector made demands as permitted under the Act, one of which was to be provided with a Food Handler certificate. Mr. Lewin produced a cell phone image of a certificate in the name of Jeffrey Powell. He answered to the name Jeffrey throughout her interactions and was never corrected.
25I feel it is important to state how the Inspector described the defendant as in his testimony, he stated that he felt intimidated by the two officials, who by my description can be stated to be small in stature.
(a) Male, bald with a large build.
26Two answers to questions that the Inspector did learn was that the hot sauces had been purportedly prepared at “Devon House” in Leamington Ontario and the foods displayed on the table had been prepared and cooked at “Kitchen 24” in Toronto. Later, a document was presented to the Court which described Devon House as a bar/nightclub.
27She continued her investigation and determined through business searches and open-source web checks that all led to Lyndon Lewin with an address in Ajax Ontario, who had a corporate profile dated December 29, 2020, and valid until December 28, 2025, with a business name of:
(a) 1 Spicy Mama.
(b) Sole proprietor named as Lyndon Ainsworth Lewin.
28She testified that because of their investigation they determined that the defendant was the director and sole proprietor of “1 Spicy Mama”. They further discovered that the business was offering similar food items for sale online and in stores.
29On March 15, 2024, the defendant was served with an Order pursuant to section 13 of the Health Protection and Promotion Act. Inspector Cheung attended to Mr. Lewin’s residential address in Ajax and saw the defendant. She stated that he was not Jeffrey Powell but rather Lyndon Lewin and was the same man she interacted with at the Uxbridge community centre. He was asked for identification. He would not provide any. The Order described the following that had to be adhered to by March 18, 2024.
(a) Cease operation of the food premises immediately.
(b) Cease all advertising and initiation of sales to the public via social media platforms and any other advertising as applicable.
(c) Submit a step-by-step recipe for all canned and bottled foods to the Durham Region Health Division (the Region) by March 18, 2024.
(d) Supply the Region with lab results for all canned and bottled foods and juices so they are shelf-stable and safe for human consumption.
(e) Notify the Region by March 18, 2024, of any on-line or in-person retailers who offer or have offered for sale canned or bottled food products produced by 1 Spicy Mama in the last six months.
(f) Notify the Region of any special events or farmers markets that 1 Spicy Mama is registered for in the year 2024.
(g) An Order was issued on that participation as a food vender in any special event or farmers markets was prohibited unless approval was received by Durham Region Health Division for the said Region.
(h) To submit a complete and accurate Special Event Vendor application to the Region at least 30 days prior to each event or market.
(i) Notify the Region in writing of the address and location name where all canned or bottled goods and juices are being stored.
(j) Provide The Region a copy of all licenses the 1 Spicy Mama has received by March 18, 2024.
(k) Provide the Region proof of contract with an inspected kitchen, with various details including the name and address, contact information, dates and times of use, and parties involved in the rental agreement, and the length of the rental agreement.
Public Health Inspector Fulgencio
30Inspector Fulgencio testified that she also attended the home address of the defendant on March 15, 2024. Her contact information was contained on the Order as served by her colleague. She testified that she had not received any of the information from the defendant as of March 18, 2024, or thereafter. She also stated that she left him a voice mail on March 27, 2024, with no response from Mr. Lewin.
Public Health Inspector Wark
31Inspector Wark testified that she had attended to the Uxbridge community centre on March 10, 2025, with her associate and made observations consistent with Inspector Cheung. She also learned that the food on the table had been purportedly cooked at “Kitchen 24” in Toronto that morning.
Manan Yadav of Kitchen 24
32Manan Yadav is the operations manager of Kitchen 24. This is a Health Department certified kitchen. He testified that 1 Spicy Mama has never used the business. He said that on April 23, 2024, 1 Spicy Mama had emailed them, but no business had ever been conducted with them to date.
Public Health Inspector Nikolov
33Inspector Nikolov testified that he was assigned to attend an address in Pickering Ontario on April 5, 2024, to inspect the business known as Canada Black Owned Marketplace for 1 Spicy Mama food products. He located seven products with price tags, those included five seasoning mixes and two hot sauce bottles.
Public Health Inspector Jovanovski
34Inspector Jovanovski testified that she was assigned to inspect the business known as Little West Indie Food Market in Bowmanville on April 5, 2024, for 1 Spicy Mama food products. She observed sixteen bottles of barbeque and hot sauces on display and for sale.
Lyndon Lewin (the defendant)
35Lyndon Lewin chose to testify. He admitted to being at the Uxbridge farmer’s market on the date of March 10, 2024. He admitted to interacting with the officials. He admitted to behaving badly because he was intimidated by the Inspectors. He admitted to preparing the “hot foods” but as an unrelated business to 1 Spicy Mama. He even admitted to producing what he believed was his licence to the Inspector. That licence, of course was not in his name but rather in the name of Jeffrey Powell.
36He also admitted that after March 10, 2024, he was contacted by Health officials but was too busy to talk. He admitted to receiving the Order of March 15, 2024, at his residence. He said that when the Inspector started to read the contents of the Order, he stopped her and decried that he could read.
37Mr. Lewin tried to explain to the Court that he went on a vacation and could not respond to the officials within the three-day time requirement as outlined in the Order. He said that had no way to communicate during his trip between March 16, 2024, and March 28, 2024, but again admitted to receiving a phone call from Inspector Fulgencio on March 24, 2024, where he told her that he understood he was charged, and he was not providing any other information. This contradicts his statement completely.
38Mr. Lewin stated throughout his evidence that it was only his name as the sole proprietor of 1 Spicy Mama and name only and that he had no knowledge of the daily workings or financials. He said that he was only providing guidance to his niece, Andrea Lewin, and nothing more. In fact, he said that the very next day, after hearing what the Inspectors had to say, he called his niece and stated that he wanted his name removed from the business.
39The Prosecutor emphasized to him that he knew about the section 13 Order (from March 15, 2024). He replied that he wasn’t aware. It must be noted what he said when he had been served the Order - that he could read and that he dismissed the officials from reading it to him. He also said to the Inspector when he was called on his phone while on holiday, that he knew he was charged.
40The defendant stated that he provided guidance to his niece to support her business but at no time did he agree to be the director. But then after the officials interacted with him, he said that the very next day he called his niece to be removed from the business. He started to explain that his name was on the business to support Ms. Lewin but when pressed as to what that reason might be, he had no answer.
41He took no ownership of the business or the website where 1 Spicy Mama foods were being sold.
42When asked by Mr. Pelham if he agreed that he had not complied with the counts as alleged in the charging document, he replied that he had not. This forms the basis for the due diligence defence.
Analysis
43The evidence of Inspector Cheung was provided in a clear, specific, and candid manner, as were all Prosecution witnesses. There were no inconsistencies as to her original interaction with Mr. Lewin or throughout her investigation. She was unshaken in cross-examination and as such I accept her evidence and find her description of the allegations to be credible and reliable.
44I will speak to other prosecution witnesses collectively. They were all straight forward and unchallenged in any way.
45Mr. Lewin’s evidence was not plausible, or consistent. For instance, according to his evidence the following would have to be believed:
(a) Since 2020, when his name was placed on the business records for 1 Spicy Mama until the events of March and April 2024, he had limited knowledge of the business and had only been assisting with his name to help his niece.
(b) The amounts of foods that were advertised on-line for sale after the Order was made are massive. The defendant wishes me to believe that he had no knowledge whatsoever of the business and yet he said numerous times that he was mentoring his niece on the commercial practices. Everything from juices, sauces, fried chicken, Jamaican jerk chicken, curry chicken, fried red snapper, lobster and shrimp, mac and cheese, salads, seasonings, fruit pies to gift packs and much more were all shipped from 75 Williamson Drive West, Ajax Ontario. (Exhibit 4a and 4b depicts the food products under the name of 1 Spicy Mama)
(c) He also wants me to believe that there is no connection between him being the owner and chef of Loleta’s Kitchen as found in Exhibit 1 for the defence and that he has no connection to 1 Spicy Mama as a food provider. Of course, he admits to selling prepared foods at the same table as Ms. Lewin on the offence date.
46It is clear to me that the evidence that Mr. Lewin was in fact the owner of the company 1 Spicy Mama is accurate and that his misfortune of being present with his niece on that March day in 2024, simply guiding her business at the farmer’s market is not believable.
47Possibly one of the most important issues at hand is the fact that Mr. Lewin did not appeal the Order of March 15, 2024, thus not availing himself to the mechanisms available under the Health Protection and Promotion Act.6 The Order itself provided direction to the defendant on how to commence an appeal.
48I reject the evidence of Mr. Lewin that he was only a name attached to a legal document, the very document in which he attempted to remove his designation from once he knew he’d been discovered conducting activities in contravention of the Act. I further reject that the inspectors were aggressive and intimidating.
49His post-offence conduct demonstrates culpability in my view. It would be akin to being charged with “running a stop sign” on a Tuesday and removing the stop sign from its lawful position on Wednesday and then saying that nothing happened on Tuesday. Lots happened during the offence periods – food continued to be advertised for sale. There was no compliance whatsoever to the Order made March 15, 2024.
Ruling
50I am satisfied that the evidence provided to this Court by all the prosecution’s witnesses reflect events that transpired. The Prosecution has proven their case on all counts beyond a reasonable doubt.
51I am not satisfied that Mr. Lewin took any reasonable steps to avoid the charges and therefore he has not met the legal burden on the balance of probabilities to prove his innocence in terms of due diligence.
52Findings of guilt will be registered on all eight counts.
Released: April 22, 2025
Signed: Justice of the Peace Joel Kulmatycki
Health Protection and Promotion Act R.S.O. 1990, c. H.7
Health Protection and Promotion Act R.S.O. 1990, c. H.7
Health Protection and Promotion Act R.S.O. 1990, c. H.7
Footnotes
- Section 13(1)
- Section 13(2)
- Section 100(1)
- R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742.
- See R v. Consolidated Maybrun Mines Ltd., [1998] S.C.R. 706, paragraphs 60,61,62 and 64
- See R v. Consolidated Maybrun Mines Ltd. [1998] S.C.R. 706, paragraphs 60,61,62 and 64